Fired Early? Why You Still Need a Wrongful Dismissal Lawyer as a Short-Service Employee
Indotribun.id – Wrongful Dismissal Lawyer as a Short-Service Employee. You’ve just been let go from a job you held for less than a year, maybe even just a few months. The shock is often followed by a sinking feeling of helplessness. A common myth in the workplace is that if you’re a “short-service” or “probationary” employee, your employer can fire you for any reason with little to no consequence. You might believe you have no rights and no recourse.
This is a costly misconception.
In Canada, every employee has rights, regardless of their tenure. While your employer can terminate your employment without a valid reason (a “without cause” dismissal), they cannot do so without providing proper notice or payment in lieu of notice. A wrongful dismissal occurs when an employer fails to meet this legal obligation.
This article explores the rights of short-service employees and explains why consulting a wrongful dismissal lawyer is your most critical next step.
The Crucial Difference: Statutory Minimums vs. Common Law Notice
When you are dismissed without cause, your entitlement to notice is governed by two different legal frameworks: provincial employment standards legislation and the common law.
1. Statutory Notice Periods
Every province has an Employment Standards Act (ESA) or similar legislation that outlines the minimum notice or termination pay an employer must provide. For short-service employees, these minimums are often very low. For example, in Ontario, an employee with more than three months but less than one year of service is only entitled to one week of notice under the ESA. For those with less than three months, the statutory minimum is zero.
Many employers and employees mistakenly believe this is the end of the story. They provide the one week of pay and consider the matter closed. This is where they are often wrong.
2. The Power of Common Law Reasonable Notice
The statutory minimums are just that—a minimum. The courts have long established a principle called common law reasonable notice. This is a much more nuanced and almost always more generous calculation of the notice period an employee is entitled to.
Common law notice is not based on a simple formula. Instead, it considers several factors (often called the Bardal factors) to determine what is “reasonable” for that specific employee to find comparable employment:
- Character of Employment: Were you in a specialized or senior role? The more specialized your position, the longer your notice period may be.
- Length of Service: While your service is short, it is still a factor.
- Age of the Employee: Older employees are generally awarded longer notice periods as they may face more difficulty finding a new job.
- Availability of Similar Employment: The court considers the job market and how long it would realistically take someone with your skills and experience to find a similar position.
Even for an employee with only six months of service, a common law reasonable notice period could be anywhere from 2 to 4 months, a significant increase from the one-week statutory minimum. A wrongful dismissal lawyer specializes in calculating and negotiating for this far more substantial common law entitlement.
What About Probationary Periods?
Many employers use a “probationary period” (typically three months) under the belief that it gives them the right to terminate an employee for any reason without notice. This is only partially true.
For a probationary clause to be enforceable, it must be a clearly written and explicit term in your employment contract. It must state that your suitability for the role will be assessed and that you can be terminated without notice or pay in lieu if you are deemed unsuitable.
However, even with a valid probationary clause, an employer cannot terminate you for reasons that are discriminatory or in bad faith. For example, firing you because of a disability, your family status, your race, or because you raised a legitimate workplace safety concern would be illegal and grounds for a human rights claim or reprisal complaint, regardless of your tenure.
When a Dismissal is Automatically Illegal
Length of service is completely irrelevant if your dismissal was illegal from the outset. You cannot be terminated for reasons that violate your fundamental human rights or other statutory protections. This includes being fired due to:
- Discrimination: Based on protected grounds like age, race, gender identity, sexual orientation, disability, or family status (e.g., being pregnant).
- Reprisal: For exercising a legal right, such as filing a harassment complaint, reporting an injury, or inquiring about your pay under the ESA.
In these cases, you may have a claim for wrongful dismissal and a human rights claim, which can result in significant damages for injury to dignity and lost wages.
How a Wrongful Dismissal Lawyer Can Help You
Navigating this complex legal landscape alone is daunting. An experienced wrongful dismissal lawyer provides invaluable assistance for a short-service employee:
- Assess Your Case: They will review your employment contract, the circumstances of your termination, and determine if your dismissal was wrongful, discriminatory, or a reprisal.
- Calculate Your Entitlements: They will ignore the low statutory minimums and accurately calculate the common law reasonable notice period you are truly owed.
- Negotiate a Fair Severance Package: Most employers initially offer only the statutory minimum. Your lawyer will draft a demand letter and negotiate directly with your former employer or their legal counsel to secure a severance package that reflects your common law rights.
- Protect You from Unfair Releases: Employers will ask you to sign a Release in exchange for a severance payment, which signs away your right to sue them. A lawyer ensures the package is fair before you sign away your rights.
Don’t let your short tenure discourage you from seeking justice. The law provides significant protections, and a small investment in legal advice can result in a severance package that is thousands of dollars larger, giving you the financial stability you need to find your next role.
Frequently Asked Questions (FAQ)
1. Can I be fired for no reason during my first 3 months (probation)?
Yes, if your employment contract contains a clear and enforceable probationary clause, your employer can terminate you without notice if they determine in good faith that you are unsuitable for the position. However, they cannot fire you for discriminatory reasons (e.g., due to a disability, pregnancy, or your ethnicity) or as a reprisal for exercising a legal right. If no such clause exists in your contract, you are still entitled to common law reasonable notice.
2. Is it worth hiring a lawyer if I only worked somewhere for 6 months?
Absolutely. Let’s say you earned $60,000 per year. The statutory minimum notice in many provinces would be one week, or about $1,150. An employment lawyer might successfully argue that under common law, you are entitled to 2-3 months of notice, which would be $10,000-$15,000. The potential return on investment is significant, and many employment lawyers offer contingency fee arrangements or free consultations.
3. My employer said they had “just cause” to fire me. What does that mean?
Just cause” is the capital punishment of employment law. It means your conduct was so severe that it fundamentally broke the employment relationship, entitling the employer to terminate you immediately without any notice or severance. This includes things like theft, serious insubordination, or fraud. Employers often allege just cause to avoid paying severance, but the legal bar to prove it is extremely high. A lawyer can assess whether your employer’s claim of “cause” is legitimate or simply an attempt to avoid their legal obligations.
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